Pointer v. Rite Aid Headquarters Corp.

• Decision Date: 01 June 2021
• Docket Number: NO. 2020-CA-00715-COA,2020-CA-00715-COA
• Citation: 327 So.3d 159
• Parties: Larry POINTER and Shirley Pointer, Appellants v. RITE AID HEADQUARTERS CORP., K&B Mississippi Corporation, and Hetal Patel, Appellees
• Court: Mississippi Court of Appeals

327 So.3d 159

Larry POINTER and Shirley Pointer, Appellants

v.RITE AID HEADQUARTERS CORP., K&B Mississippi Corporation, and Hetal Patel, Appellees

NO. 2020-CA-00715-COA

Court of Appeals of Mississippi.

June 1, 2021

Rehearing Denied August 31, 2021

ATTORNEY FOR APPELLANTS: ERIC JOSEPH LEWELLYN

ATTORNEY FOR APPELLEES: TIMOTHY DALE CRAWLEY, Ridgeland

BEFORE CARLTON, P.J., LAWRENCE AND SMITH, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. The DeSoto County Circuit Court entered an order granting summary judgment in favor of Rite Aid Headquarters Corp., K&B Mississippi Corporation, and Hetal Patel (collectively, the Appellees). In its order, the trial court found no material facts in dispute and accordingly dismissed Larry and Shirley Pointer's claims against the Appellees for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.

¶2. The Pointers now appeal, asserting the following assignments of error: (1) the trial court erred in finding that Patel's statements to law enforcement were privileged, and (2) the trial court erred in concluding that no genuine issues of material fact existed, thus warranting summary judgment.

¶3. After our review, we find no error. We therefore affirm the trial court's grant of summary judgment in favor of the Appellees.

FACTS

¶4. On May 19, 2016, Larry Pointer presented a prescription for a controlled substance to pharmacist Hetal Patel at the Rite Aid pharmacy¹ in Southaven, Mississippi. Upon following Rite Aid's policies for verifying prescriptions for a controlled substance, Patel determined that the prescription was suspicious. In light of her suspicions, Patel contacted local law enforcement authorities and reported the suspicious and potentially fraudulent prescription. Two officers with the Southaven Police Department responded to Patel's call. The officers took Larry and his wife, Shirley, into custody.² Upon further investigation, Larry and Shirley were released.

¶5. On October 6, 2016, the Pointers filed a complaint against the Appellees asserting claims for defamation, intentional infliction of emotion distress, negligent infliction of emotional distress, and negligence.³

¶6. On March 10, 2020, the Appellees filed a motion for summary judgment asserting that no genuine issue of material fact existed and that, as a result, the Appellees were entitled to prevail as a matter of law. The Appellees argued that the Pointers could not meet their burden of proof as to any of their alleged claims. The Appellees attached the following documents in support of their motion: an itemization of undisputed material facts; their memorandum brief in support of their motion; the Pointers' original complaint, amended complaint, and second amended complaint; excerpts of the deposition testimony of Hetal Patel and Dr. Parvinchandra Patel, the doctor who wrote the prescription at issue; a Mississippi Prescription Management Program printout concerning Larry; and a Tennessee Prescription Management Program printout concerning Larry.

¶7. On June 24, 2020, five days before the summary judgment hearing, the Pointers filed their response in opposition to summary judgment. On June 24 and June 25, 2020, the Pointers also filed the following with the trial court: a Mississippi Rule of Civil Procedure 30(b)(6) deposition transcript of K&B Mississippi Corporation's corporate representatives; a deposition transcript of Officer Brett Yoakum; a deposition transcript of Larry; a deposition transcript of Dr. Patel; and a deposition transcript of Hetal Patel.

¶8. After the hearing on June 29, 2020, the trial court entered an order granting summary judgment in favor of the Appellees. The trial court held that because the Pointers failed to sustain their burden of production as to the necessary elements for their claims of defamation, intentional inflection of emotional distress, negligence, or negligent infliction of emotional distress, "there are no genuine issues of material fact, and [the] Defendants are entitled to judgment as a matter of law."

¶9. The Pointers now appeal from the trial court's order granting summary judgment.

DISCUSSION

¶10. On appeal, the Pointers argue that the trial court erred in finding that Hetal Patel's (hereafter "Patel") statements to law enforcement regarding Larry's prescription were privileged, and the trial court therefore erred in concluding that no genuine issues of material fact existed. Because the determination of whether Patel's statements to law enforcement were privileged affects whether summary judgment was appropriate as to the Pointers' claim of defamation, we will combine these issues.

¶11. This Court applies a de novo standard when reviewing a trial court's grant of a motion for summary judgment. Venture Inc. v. Harris , 307 So. 3d 427, 431 (¶14) (Miss. 2020). "Summary judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Id . at 431-32 (¶14) (quoting M.R.C.P. 56(c) ).

¶12. The reviewing court must view the evidence "in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. Otherwise, the motion should be denied." Id . at 432 (¶15). The movant "bears the burden of demonstrating that no genuine issue of material fact exists." Id . The supreme court has stated that "the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried." Id . (quoting Evan Johnson & Sons Constr. Inc. v. State , 877 So. 2d 360, 365 (¶17) (Miss. 2004) ).

A. Defamation

¶13. In the present case, the trial court granted summary judgment as to the Pointers' claim for defamation after finding that the Pointers failed to meet their burden of production that Patel's statements to law enforcement were not privileged and that Patel acted in bad faith. The trial court found that Patel, as a pharmacist, had a duty pursuant to the Mississippi Pharmacy Practice Act, Mississippi Code Annotated section 73-21-127 (Supp. 2014), to check a patient's prior prescriptions before filling a prescription for a controlled substance. The trial court further held that regardless of whether Patel's statement that Larry possessed a fraudulent prescription was false, Patel "appeared to act in good faith by reporting what they call a suspicious prescription to law enforcement."

¶14. On appeal, the Pointers argue that the trial court erred in determining that Patel's statements to law enforcement regarding Larry were made in good faith and therefore privileged. The Pointers assert that even though Patel knew that Dr. Patel wrote the prescription, Patel still made a false allegation by telling the police that Larry forged the prescription. The Pointers claim that Patel did not act in good faith because she admitted that she knew Dr. Patel wrote Larry's prescription before she contacted the police.

¶15. The Appellees, however, maintain that Patel never informed police officers that Larry's prescription was forged; rather, Patel informed police officers that Larry possessed a fraudulent prescription. Patel admitted she knew that Dr. Patel actually wrote the prescription for Larry. However, upon following the procedure for verifying a prescription for a controlled substance, Patel discovered that Larry had received multiple prescriptions for the same controlled substance from two different doctors during approximately the same time period.⁴ Furthermore, Dr. Patel's nurse instructed Patel not to fill Larry's prescription.

¶16. To prevail on their claim of defamation, the Pointers bear the burden of proving the following elements:

(a) A false statement that has the capacity to injure the plaintiff's reputation;

(b) An unprivileged publication, i.e., communication to a third party;

(c) Negligence or greater fault on [the] part of [the] publisher; and

(d) "Either actionability of the statement irrespective of special harm or the existence of special harm caused by publication."

Rainer v. Wal-Mart Assocs. Inc ., 119 So. 3d 398, 403 (¶16) (Miss. Ct. App. 2013) (quoting Speed v. Scott , 787 So. 2d 626, 631 (¶21) (Miss. 2001) ). The supreme court has explained that "[w]hen analyzing defamation claims, Mississippi courts employ a bifurcated process." Barmada v. Pridjian , 989 So. 2d 359, 362 (¶9) (Miss. 2008). The trial court must first "determine whether the occasion calls for a qualified privilege." Id . If the court finds that "a qualified privilege does exist, the [c]ourt must then determine whether the privilege is overcome by malice, bad faith, or abuse." Id . The Pointers, as the plaintiffs, bear the burden of proof in showing that the communication at issue was not privileged. Rainer , 119 So. 3d at 403 (¶16).

¶17. In determining whether Patel's statements to law enforcement were privileged, we recognize that the supreme court has defined qualified privilege as

a communication made in good faith and on a subject matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without this privilege would be slanderous.

Barmada , 989 So. 2d at 362 (¶9). Additionally, "communications which would otherwise be defamatory are protected as privileged if they are made in good faith in the prosecution of any inquiry regarding a crime which has been committed." Bester ex rel. Bester v. Clark , 963 So. 2d 1190, 1192 (¶10) (Miss. Ct. App. 2007) (quoting Downtown Grill Inc. v. Connell , 721 So. 2d 1113, 1117 (¶8) (Miss. 1998) ). "A citizen has a privilege to start the criminal law into action by complaints to the proper officials so long...